Allahabad High Court
Jyoti Prakash Navatia vs Ramji Sehgal And 3 Others on 5 November, 2024
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:172719
Court No. - 4
Case :- S.C.C. REVISION No. - 130 of 2024
Revisionist :- Jyoti Prakash Navatia
Opposite Party :- Ramji Sehgal And 3 Others
Counsel for Revisionist :- Kriti Gupta,Rohan Gupta
Counsel for Opposite Party :- Girja Shanker Mishra,Manish Tandon,Pratiksha Rai,Vinayak Varma
Hon'ble Ajit Kumar,J.
1. Heard Sri Rohan Gupta, learned counsel for the revisionist and Sri Vinayak Varma, learned counsel for the the landlord-respondent.
2. By means of this revision petition, petitioner has questioned the order passed by the trial court striking off the defense of the petitioner under Order 15 Rule 5 CPC on the ground that the petitioner has not been able to pay the rent since 2011 which he was required to pay to the landlord respondents.
3. The submission advanced by learned counsel for the petitioner is that the landlord respondents did not remain any more landlord of the premises in question in view of the sale deed executed on 06.02.2007 and till 06.02.2007 he has paid the rent to his landlord. With the execution of the sale deed since the respondents did not remain the landlord, he has not paid any rent to the present respondents.
4. Even otherwise he submits that the sale deed which was got subsequently cancelled in 2011 for a decree of competent court of law, was without jurisdiction for the reason that the suit itself was not maintainable for cancellation of sale deed only upon the plea of non payment of entire sale consideration. The submission so advanced by learned counsel for the petitioner is claimed to be fully covered by the authority of the Supreme Court in the case of Dahiben vs Arvindbhai Kalyanji Bhanusali (Gajra):(2020) 7 SCC 66, wherein vide paragraph nos.29.7 and 29.8 the Court considered this aspect of the matter and held vide paragraph nos.20.9 and 20.10 that once the sale deed had been duly executed and the transfer of property took place in accordance with law, non payment of complete sale consideration can only invite a suit as an actionable claim for recovery of the unpaid amount of consideration and no suit for cancellation of saledeed would be maintainable. He therefore, submits that in a suit for cancellation of sale deed for non payment of the sale consideration, if a decree is passed, such a decree by the trial court would be a nullity. In support of this submission he has further placed reliance upon judgement of the Supreme Court in the case of Harshad Chiman Lal Modi v. DLF Universal Ltd. and another:(2005) 7 SCC 791 where the court defines type of jurisdiction that could be the subject matter for adjudication and in the event there is a subject matter outside the scope of the jurisdiction in a case, then the decree passed by the trial court would be a nullity.
5. Per contra, Mr. Varma has argued that a bonafide plea for non payment of rent was ofcourse, available until the sale deed was cancelled. He submits that once the saledeed got cancelled by a valid decree passed by a court of law, whether a decree could have been passed for want of any jurisdiction qua subject matter, would be a subject matter of adjudication in appropriate case and so such a decree passed by the Court cannot be taken to be a nullity ipso facto in law. He submits that in view of the law laid down by the Supreme Court in the case of Asha Rani Gupta v. Shri Vineet Kumar: [2022 (8) ADJ 572(SC)] there would be no bonafide plea available so as to question the title of the landlord to set up a defense for non payment of rent and to fall away from mischief of Order 15 Rule 5 CPC.
6. After hearing the respective parties, before this Court could proceed further in the matter to pass final judgment, Mr. Gupta takes a further plea that his client is ready to pay the entire dues from 2015 onwards ever since they had taken the plea for non payment of rent. He submits that if the respondents agree the entire dues will be paid within a period of four weeks from today.
7. Mr. Varma, learned counsel for the landlord-respondent does not have any objection provided the petitioner complies with the undertaking being given before the Court through the counsel.
8. In view of the above, the order passed by the trial court striking out the defense of the petitioner under Order 15 Rule 5 CPC vide judgment and order dated 22.05.2024 is hereby setaside subject to the petitioner making the deposit of the entire amount of rent due from 10.09.2015 within four weeks from today and in any case by 12.12.2024.
9. In the event such deposit is made, the Court will proceed to decide the suit after taking defense of the petitioner.
10. It is clarified that in the event of default of compliance of the above directions, the defense of the petitioner shall stand stuck off and no further recall or time extension application will be entertained.
11. With the aforesaid observations and directions, this petition stands disposed of.
Order Date :- 5.11.2024
Deepika
